Rochester Area SD v. D.R. Weidner v. Kapaco Investment Group, LLC ~ Appeal of: D.R. Weidner

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rochester Area School District :
:
v. :
:
Derek R. Weidner : No. 1412 C.D. 2018
: ARGUED: May 7, 2019
v. :
:
Kapaco Investment Group, LLC :
:
Appeal of: Derek R. Weidner :

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 11, 2019

In this appeal, Appellant Derek R. Weidner (Weidner) challenges the Court
of Common Pleas of Beaver County’s (Trial Court) September 19, 2018, order
denying his Petition for Redemption pertaining to a property located at 140 Lacock
Avenue in East Rochester, Pennsylvania (Property), which had been Weidner’s
home before it was sold at an April 9, 2018, tax sale to Appellee Kapaco Investment
Group, LLC (Kapaco). Through this order, the Trial Court deemed the Property
“vacant” pursuant to Section 32(c) of what is commonly known as the Municipal
Claims and Tax Liens Act (Act)1 and, therefore, that redemption was no longer

1
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. § 7293(c).
possible because the sheriff’s deed for the Property had already been acknowledged.
We affirm.
The factual history in the matter is essentially agreed-upon by both Kapaco
and Weidner.2 See Kapaco’s Br. at 2. On January 14, 2015, Appellee Rochester Area
School District (School District) filed a claim against Weidner pursuant to the Act,
due to his failure to pay the school taxes assessed against the Property. Weidner did
not respond, resulting in the entry of a default judgment against him on June 17,
2015. The School District subsequently docketed a Praecipe for Writ of Execution
on April 20, 2016, paving the way for the Property to be sold at sheriff’s sale. This
did not happen immediately, however, as the sale was repeatedly continued over the
course of the next two years.
Weidner was living at the Property throughout this period of time, until
November 17, 2017, when he began serving a short jail sentence due to being
convicted for driving under the influence. Weidner Dep. at 10, 14, 26. Weidner was
eventually released from jail on January 19, 2018. Rather than returning to his
Property in East Rochester, he moved into his girlfriend’s house in Beaver Falls,
Pennsylvania. Id. at 11-12, 14, 24-25. Weidner claimed that he did so because “[t]he
water got shut off [at the Property]. . . . That’s why I went [to live in Beaver Falls]
or I’d have been back home.” Id. at 14. However, the record reflects that the Beaver
Falls Municipal Authority did not shut off the Property’s water service until
February 23, 2018, due to an unpaid balance of $308.26. Reproduced Record (R.R.)
at 123-24. According to Weidner, he did not have enough money at that point in time
to pay both his property taxes and his water bill, so he elected to satisfy what he

2
Rochester Area School District filed a Notice of Non-Participation with our Court on
February 11, 2019.

2
owed on the former and assumed he would be able to deal with the latter at some
point in the future. Id. at 14-15, 18-19.
On April 8, 2018, the Property was sold to Kapaco at sheriff’s sale. The
sheriff’s deed for the Property was acknowledged on April 30, 2018. Kapaco
recorded this deed on May 1, 2018. Id. at 12-14. On May 15, 2018, Weidner filed
his Petition for Redemption, arguing that he was allowed to redeem the Property
under the Act.3 Petition for Redemption ¶¶1-12. Kapaco intervened in the matter and
responded in opposition to the Petition for Redemption. Kapaco maintained that at
the time of the sale, the Property had been “vacant,” as that word has been defined
through case law interpreting the Act, and could not be redeemed because the deed
had already been acknowledged. Kapaco’s Br. in Opposition to Petition for
Redemption at 2-10.4
The Trial Court held a rule hearing on September 17, 2018 on the Petition for
Redemption. Kapaco and Weidner offered evidence regarding Weidner’s usage of
the Property during the time period surrounding the sheriff’s sale, the physical state
of the Property itself, the Property-related debts owed and payments (or lack thereof)
made by Weidner, and the status of the various utility services being supplied to the
Property. Notes of Testimony (N.T.), 9/17/18, at 5-14. After allowing both parties

3
The Act allows, in relevant part, the owner of “any property sold under a tax or municipal
claim” to reestablish ownership upon filing of a petition within nine months of the deed’s
acknowledgement, in addition to payment of the municipal or tax debt owed plus, costs, fees, and
interest, as long as the property “was continuously occupied by the same individual or basic family
unit as a residence for at least ninety days prior to the date of the sale and continues to be so
occupied on the date of the acknowledgment of the sheriff’s deed therefor.” Section 32(a) and (c)
of the Act, 53 P.S. § 7293(a), (c).

4
Kapaco also raised an alternative argument, regarding Weidner’s need to reimburse
Kapaco for costs related to the sheriff’s sale in the event that his Petition for Redemption was
granted, which is not relevant to this appeal. Br. in Opposition to Petition for Redemption at 10-
12.

3
to present oral argument, the Trial Court discussed Brentwood Borough School
District v. HSBC Bank USA, 111 A.3d 807 (Pa. Cmwlth. 2015), aff’d, Brentwood
Borough School District v. Held, 139 A.3d 187 (Pa. 2016) (per curiam), which
addressed the question of how to determine whether a property should be deemed
“vacant” under the Act. N.T., 9/17/18, at 24-26. The Trial Court summarized the test
articulated in Brentwood as follows:
[The question of] whether a property was continuously
occupied by the same individual basic family unit as a
residence is a factual determination which must be made
on a case[-]by[-]case basis considering factors . . .
[including] whether anyone was habitually physically
present at the property, i.e.[,] regularly sleeping and eating
there, and using it as a place to dwell, whether any lack of
physical presence was due to temporary illness, travel or
renovation, whether the property was unsecured,
damage[d], or un[in]habitable, and whether the basic and
necessary utilities, such as water, electric, and gas were
operational.
Id. at 25-26.5 Turning to the particulars of this matter, the Trial Court stated
[I] have to weigh a balance of things. You[, i.e., Weidner’s
attorney] show me photographs that show that [Weidner]
maintained everything still at the [Property], even pets . . .
and you provide me with evidence that show[s] that he did
pay county taxes prior to the sheriff sale. I have to weigh

5
The Trial Court’s wording was virtually identical to that which we used in Brentwood:
Whether a property was “continuously occupied by the same
individual or basic family unit as a residence” is a factual
determination which must be made on a case-by-case basis,
considering factors, such as: whether anyone was habitually
physically present at the property, i.e., regularly sleeping and eating
there and using it as a place to dwell; whether any lack of physical
presence was due to temporary illness, travel or renovation; whether
the property was unsecured, damaged or uninhabitable; and whether
the basic and necessary utilities such as water, electric and gas were
operational.
Brentwood, 111 A.3d at 813.

4
 and balance those against the fact that there was no water
[service to] the premises [between February 23, 2018, and
the date] the property was sold, that [Weidner] had not
lived there since November with a sale that occurred in
April [2018.]
...
[Weidner] was obviously delinquent in, in the water bill,
but that is why he did not go back to the house in January,
and the water was [then] shut off [on February 23, 2018].
You indicate that [Weidner] . . . still had electric service
there, but he owed $3,252.97 on that. I don’t know what
the status of that is now.
Id. at 27, 29.
The parties then offered additional argument regarding the Property’s
habitability and whether it should be deemed vacant per Brentwood. Id. at 31-40.
The Trial Court concluded that the Property was vacant pursuant to the Act for
several reasons: first, Weidner never made any attempt to pay the Property’s school
taxes prior to the sheriff’s sale; second, he did not live at the Property after
November 17, 2018, and made no attempt to reestablish it as his domicile after being
released from jail; third, water service at the Property was terminated nearly two
months prior to the sheriff’s sale; and fourth, there were other utility bills for the
Property that were in arrears. Id. at 42-49. Consequently, the Trial Court denied the
Petition for Redemption, as Weidner no longer had the statutory right to redeem the
Property. Tr. Ct. Or., 9/19/18, at 1.
This appeal followed on October 16, 2018. The Trial Court ordered Weidner
to submit a Concise Statement of Errors Complained of on Appeal, which Weidner
did in a timely fashion. However, rather than issue a formal Opinion, the Trial Court
instead opined in a brief order that Weidner had waived his ability to appeal by virtue
of failing to file a post-trial motion. Tr. Ct. Or., 11/26/18, at 1. In the alternative, the
Trial Court maintained that all of the issues Weidner had raised in his Concise

5
Statement of Errors Complained of on Appeal had been adequately addressed
through the factual findings and legal conclusions made on the record during the
September 17, 2018, hearing, which had been incorporated by reference into the
Trial Court’s September 19, 2018, order. Id. at 1-2.
On appeal, Weidner argues that he did not waive his right to appeal, as he was
not required to file a post-trial motion in the Trial Court, since such motions are not
allowed in “matters governed exclusively by the rules of petition practice.”
Weidner’s Br. at 11 (quoting Note to Pa. R.C.P. No. 227.1(c)). In the alternative,
Weidner opines that the September 17, 2018, hearing did not constitute a trial and,
therefore, it was unnecessary for him to file a post-trial motion. Id. at 13-14.
In addition, on the merits of the Trial Court’s decision, Weidner maintains
that the Trial Court improperly failed to consider Weidner’s intent to return to the
Property. Weidner points out that he had paid the property taxes that were owed after
his release from jail, kept both electric and gas service active, was on a payment plan
for his delinquent electric bill, needed only to pay a relatively small amount of
money to have water service restored, maintained the Property and kept it fully
furnished, had not been cited for any code violations, and had never changed his
mailing address to another location. Id. at 18. On this basis, Weidner argues that the
Trial Court erred by deeming the Property vacant and denying his Petition for
Redemption on that basis. Id. at 4, 18-19.
Preliminarily, we agree that Weidner was not required to file a post-trial
motion in this matter. In Pennsylvania, tax claims like the one which eventually gave
rise to this appeal are initiated by a writ of scire facias.
A writ of scire facias is a mandate to the sheriff, which
recites the occasion upon which it issues, which directs the
sheriff to make known to the parties named in the writ that
they must appear before the court on a given day, and

6
 which requires the defendant to appear and show cause
why the plaintiff should not be permitted to take some
step, usually to have advantage of a public record. The
object of the writ of scire facias is ordinarily to ascertain
the sum due on a lien of record and to give the defendant
an opportunity to show cause why the plaintiff should not
have execution.
The writ of scire facias serves the dual purposes of
a summons and a complaint, and a writ of scire
facias is personal process, but the detailed
requirements of a pleading are not applied to the
writ of scire facias.
18 Standard Pennsylvania Practice 2d § 102:10 (1983)
(footnotes omitted). Where the writ applies to a judicial
record it does not serve to institute an action but is founded
on an action and is termed a judicial writ. Id. § 102:11.
Shapiro v. Ctr. Twp., Butler Cty., 632 A.2d 994, 997 n.3 (Pa. Cmwlth. 1993). “The
rules of civil procedure only apply to actions brought by a praecipe for a writ of
summons or a complaint.” Knopsnider v. Derry Twp. Bd. of Sup’rs, 725 A.2d 245,
247 (Pa. Cmwlth. 1999). Writs of scire facias technically fall within neither of these
categories, but are instead entirely creatures of statute. Shapiro, 632 A.2d at 997.
Therefore, there is no requirement that post-trial motions be filed in matters
involving these writs.6

6
In Shapiro, we held that the Rules of Civil Procedure do not apply to hearings stemming
from writs of scire facias, as such proceedings are effectively statutory appeals. 632 A.2d at 997-
99. However, this reasoning is not directly applicable to matters involving redemption. Though
redemption is a statutory avenue of relief that fits under the broader umbrella of scire facias, a
property owner does not, via redemption, contest the validity or accuracy of the amount they owe
to the municipality. Rather, the owner merely seeks to avail themselves of the measure of grace
afforded to them by statute so as to regain or retain ownership of their home. See 53 P.S. § 7293.

7
 Turning to the merits of this appeal,7 we note that “[t]he purpose of sheriff’s
sales under the [Act] . . . is not to strip the owner of his or her property but to collect
municipal claims.” City of Philadelphia v. Manu, 76 A.3d 601, 606 (Pa. Cmwlth.
2013). In keeping with this broader goal, the redemption statute serves “the dual
purposes of affording owners of residentially occupied properties sufficient time to
raise funds to reclaim their property, and returning truly vacant and abandoned
properties to the tax rolls.” City of Philadelphia v. Phan, 148 A.3d 962, 970 (Pa.
Cmwlth. 2016); see also City of Philadelphia v. F.A. Realty Inv’rs Corp., 95 A.3d
377, 384 (Pa. Cmwlth. 2014) (The “redemption statute is to be liberally construed
so as to effect its object and to promote justice.”).
Here, the Trial Court considered the totality of the circumstances and
determined that the Property was vacant for purposes of the Act, 8 primarily because
Weidner made no effort to reside at the Property after his release from jail, was
delinquent on multiple utility bills, had allowed the Property’s water service to be
shut off, and had not attempted at any point prior to the sheriff’s sale to remedy his

7
“Our scope of review in tax sale cases is limited to determining whether the trial court
abused its discretion, rendered a decision [unsupported by substantial] evidence[,] or clearly erred
as a matter of law.” City of Allentown v. Kauth, 874 A.2d 164, 165 n.4 (Pa. Cmwlth. 2005).

8
Per Section 32(b) of the Act, “[a]ny person entitled to redeem may present his petition to
the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon
the court shall grant a rule to show cause why the purchaser should not reconvey to him the
premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule
absolute, and upon payment being made or tendered, shall enforce it by attachment.” 53 P.S. §
7293(b). Thus, once a petitioner articulates a prima facie valid redemption claim, the burden shifts
to opposing parties to establish, by a preponderance of the evidence, why the petitioner is not
entitled to such relief. Cf. Suber v. Pa. Comm’n on Crime & Delinquency, 885 A.2d 678, 681 (Pa.
Cmwlth. 2005) (some internal punctuation omitted) (“In civil actions, the preponderance of the
evidence standard generally is used except in certain situations that require clear and convincing
evidence, which is reserved for cases where particularly important individual interests or rights are
at stake[.]”).

8
failure to pay school taxes. See N.T., 9/17/18, at 42-49. Therefore, we hold that the
Trial Court did not abuse its discretion or commit an error of law by denying
Weidner’s Petition for Redemption. The Trial Court’s determination that the
property was “vacant” was supported by substantial evidence and comported with
the legislative intent animating the redemption statute. For these reasons, we affirm
the Trial Court’s September 19, 2018, order.

__________________________________
ELLEN CEISLER, Judge

9
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rochester Area School District :
:
v. :
:
Derek R. Weidner : No. 1412 C.D. 2018
:
v. :
:
Kapaco Investment Group, LLC :
:
Appeal of: Derek R. Weidner :

ORDER

AND NOW, this 11th day of July, 2019, the Court of Common Pleas of Beaver
County’s September 19, 2018, order denying Appellant Derek R. Weidner’s Petition
for Redemption is AFFIRMED.

__________________________________
ELLEN CEISLER, Judge